Jared Culver's Picture

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  by  Jared Culver

The Biden Administration’s recent release of policies laying out enforcement priorities and ending worksite enforcement have, in practice if not law, accomplished the Squad’s goal of abolishing Immigration and Customs Enforcement (ICE). On the policy front, this means the one agency in the Federal government with the mission of locating and removing illegal aliens is now virtually defunct. With the border essentially open as Customs and Border Protection (CBP) is overwhelmed, these new policies mean CBP won’t stop illegal aliens from entering and ICE won’t remove them once they arrive. Proving the cartel coyotes right, President Biden has dismantled the immigration enforcement apparatus. On the legal front, this raises major questions about the President’s ability to ignore statutes in the pursuit of policy goals. What good is it to pass laws through our duly elected representatives if the President can simply ignore them?

Enforcement Priorities Memo

Without any opportunity for notice to the public or opportunity for the affected Americans to be heard through the Administrative Procedures Act (APA) process, ICE released their guidance to the field regarding when aliens can be removed. The answer from reading the memo appears to be that removal of an illegal alien should be an extremely rare occurrence. The memo lays out three priorities for removal: threats to national security (including terrorists and spies); threats to public safety; and recent border crossers, defined as those who entered after November 1, 2020.

In addition to listing out the priorities, DHS caveats even further with a long list of mitigating factors for threats to public safety. Even if an alien has committed a serious crime, ICE should not remove if the removal would hurt the alien’s family or if his or her family member has served in the military or other public service (undefined in the memo), for example. And ICE is also not supposed to remove aliens who recently entered if other mitigating factors suggest otherwise.The memo does not even bother to list out what would count as mitigating or extenuating circumstances for recent border crossers, leaving this determination to the imagination or to the reasonable conclusion from the totality of the text. It is very clear from the memo and the totality of circumstances in the Biden Administration that removal is not an option for most aliens in the United States illegally, despite clear statutory requirements.

It is difficult to imagine how ICE could carry out their statutory mission within this framework. One glaring group that has no mention in the priority document is the visa-overstay population. Overstays are temporary nonimmigrants who entered legally with a visa and then refused to leave before the visa expired. In FY19 alone, the last year of a DHS Entry/Exit Overstay Report, DHS had a conservative estimate that 676,422 aliens had overstayed a visa. It is hard to get a clear number of visa overstays in the United States, but a 2016 Pew Research estimate had the overstay group making up about 45 percent of the overall illegal population in the United States. They can all breathe easy because they are of no concern to Biden’s DHS. Aliens who committed crimes in the United States but eluded ICE for a sufficient amount of time, or have some family here in the country are likely to be protected from removal, regardless of the number of victims who suffered at their hands.

Another group not mentioned in the memo are aliens who already have a final removal order pending. There are hundreds of thousands of aliens in the United States with a removal order already approved by a judge. Many abscond after receiving a removal order and others received their removal order because they refused to appear for their court dates. These aliens have been apprehended by ICE, ruled removable after judicial proceedings, and now have disappeared. Their continued presence in the United States is a clear signal to everyone that DHS lacks the seriousness to enforce the law. If even those ordered removed by a judge are protected from removal, then there is functionally no immigration law in the United States. Those aliens who gambled that DHS would never enforce a judge’s ruling against them were proven right.

Worksite Enforcement Memo

ICE is the agency with the responsibility to enforce our laws regarding illegal work in the United States. Unscrupulous employers (who also often use our legal immigration system to exploit workers, as well) ignore American workers for their cheaper alternative illegal labor force. Here, DHS required an immediate end to mass worksite enforcement. There is no replacement policy. There is no priority given for enforcing the law and using worksite enforcement against particularly egregious employers. Put simply, until ICE can refashion a new policy that suits the Biden Administration, illegal aliens are free to work illegally in the United States. Employers can continue exploiting the illegal workforce until such time in the future when ICE is allowed to enforce the law. Close immigration policy watchers will not be holding their breath.

One wonders what ICE is supposed to actually do with these two memos circulating. They essentially cannot enforce the immigration laws which is their primary duty. For American taxpayers, the question is simple: What are we paying DHS to do? The 2022 Budget Request for ICE asked for $8,371,096,000 in new budget authority. That is a lot of money to draft memos abolishing your own job. Ensuring you get paid not to work is a good gig if you can get it, I suppose. Team Biden’s ICE brass must be toasting their permanent paid vacations.

The policy ramifications are similar to the majority of the Biden policies we have seen implemented. These are further signs that the border is wide open and the United States has no interest in or intention of enforcing the immigration laws passed by Congress. When cartel coyotes make promises of permanent residence for all aliens who make it across the border they are not lying. They are the public relations representatives of the Biden Administration. And unlike his paid advisors, the cartel coyotes are actually telling the truth about the form and function of his policy agenda. The border crisis continues unabated simply because of the existence of these policies. If you have no functional border, you cannot be surprised when no one respects it.

If you are wondering how this is legal, it comes down to the idea of executive discretion. The Congress is provided the power to write our laws under the Constitution. The President is required by the Constitution to faithfully execute/enforce those laws. But our third branch, the courts, have acknowledged prosecutorial discretion for the Executive. The idea is that when Presidents are faced with limited enforcement resources they must be provided leeway to establish enforcement priorities. This idea of discretion is deeply rooted in our jurisprudence for practical reasons, but discretion has always been provided with the understanding that the Executive still has the duty to faithfully execute the laws within their power to do so. Simply disagreeing with a law is not a sufficient reason for nonenforcement. Discretion exists because 100 percent enforcement may not be possible within resource restraints. Good faith enforcement of the law is still the Constitutional mandate of the Executive Branch.

We are now within a policy realm where courts must confront and create real limits of prosecutorial discretion. The Executive Branch is using discretion as an excuse to simply ignore enforcement altogether. Courts have been reluctant to provide real teeth to the Constitution’s requirement that the laws be faithfully executed. While courts want to avoid the appearance of playing politics, there is no excuse here, because courts themselves have created and enforced the idea of prosecutorial discretion. Like Dr. Frankenstein, they must contend with the monster of their own creation. When a President makes clear he has no intention of faithfully executing the law, he cannot be allowed to hide behind the discretion given to him for the purpose of resource allocation. How can DHS be provided billions of dollars to enforce laws while simultaneously saying they have no resources for enforcement? Will courts just take the Executive Branch at its word or make it prove a lack of resources? Courts must answer clearly whether a jurisprudential tenet of discretion can functionally provide the President the power to veto statutes that have already been passed, thus swallowing up Article II duties. If courts allow Presidents a retrospective veto through discretion, then it will not just be ICE that is abolished, but Congress along with them.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Tue, Nov 2nd 2021 @ 10:05am EDT

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